West Law Report

SHORTELL v BICAL CONSTRUCTION

Posted in Breach of duty of care, causation, Westlaw Reports by mrkooenglish on June 18, 2008

Last Updated: 7:17PM BST 11/06/2008
Queen’s Bench Division (Liverpool) Mackay J May 16, 2008
Asbestos – Breach of duty of care – Cancer – Causation – Contributory negligence – Smoking – Level of exposure to asbestos – Link between exposure to asbestos and lung cancer – Increasing risk of developing lung cancer

FACTS

The claimant, the executor of the estate of a deceased (S), claimed damages against the defendant (B) for alleged negligent exposure of S to asbestos. S, who had been a smoker for a number of years but had given up smoking more than 20 years before his death, had been exposed to asbestos whilst working for B at a number of power stations as a jointer. Allegedly, he had worked in proximity to other employees who had handled asbestos. S had eventually died of lung cancer. There was no radiological evidence that he had suffered from asbestosis, though he had signs of bilateral pleural plaques together with pleural thickening. A consultant, who had dealt with cases involving asbestos, calculated the level of exposure of S to asbestos whilst working for D at 99 fibres/ml-years.

ISSUE

Whether the exposure to asbestos had caused S’s lung cancer and consequently his death.

HELD (judgment for claimant)

On the evidence, the assessment of the lifetime burden of asbestos suffered by S was 99 fibre/ml-years. Once that measurement was accepted, the exposure to asbestos more than doubled S’s risk of contracting lung cancer, Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) [2002] UKHL 22, [2003] 1 AC 32 considered. However, S, who had smoked 15 to 20 cigarettes a day for many years, had been contributorily negligent by failing to take care of his health, Badger v Ministry of Defence [2005] EWHC 2941 (QB), [2006] 3 All ER 173 applied. In the circumstances, a 15 per cent reduction in damages was appropriate.

Allan Gore QC and Andrew Macdonald (instructed by Catherine Higgins, Liverpool) for the claimant. Charles Feeny (instructed by Berryman Lace Mawer) for the defendant.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: